Mani Med., P.C. v American Tr. Ins. Co.

[*1] Mani Med., P.C. v American Tr. Ins. Co. 2010 NY Slip Op 51185(U) [28 Misc 3d 127(A)] Decided on July 7, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 9, 2010; it will not be published in the printed Official Reports.

Decided on July 7, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : STEINHARDT, J.P., PESCE and RIOS, JJ
2009-799 Q C.

Mani Medical, P.C. as Assignee of Lawes Phillips, Appellant,

against

American Transit Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 4, 2008. The order granted defendant's motion to vacate a judgment and the underlying order granting plaintiff's motion for summary judgment on default and, upon such vacatur, restored plaintiff's motion to the calendar.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and the motion was granted on default. A judgment was subsequently entered pursuant to the order. Days later, defendant moved to vacate the default judgment and the underlying order. The Civil Court granted defendant's motion and, upon vacatur, restored plaintiff's summary judgment motion to the calendar. The instant appeal by plaintiff ensued.

In order to vacate the judgment and underlying order pursuant to CPLR 5015 (a) (1), defendant was required to establish both a reasonable excuse for its default and a meritorious defense to the action (see e.g. Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The affirmations submitted by defendant in support of its motion to vacate sufficed to establish a reasonable excuse for its failure to oppose plaintiff's motion for summary judgment.

Defendant also established an arguably meritorious defense to the action as its showing that plaintiff's assignor was acting as an employee at the time of the accident was sufficient to require that the issue of whether workers' compensation benefits are available be resolved in the first instance by the Workers' Compensation Board (see O'Rourke v Long, 41 NY2d 219, 225 [1976]; see also Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]; Infinity Health Prods., Ltd. v New York City Tr. Auth., 21 Misc 3d 136[A], 2008 NY Slip Op 52218[U] [App Term, 2d & 11th Jud Dists 2008]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d & 11th Jud Dist 2007]). In addition, contrary to plaintiff's contention, defendant's motion was timely (see CPLR 5015 [a] [1]).

Accordingly, the order is affirmed. [*2]

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 2010